by Chris Musillo
MU clients are urged to initiate and file any regular cap-subject H-1B cases as soon as possible. The H-1B cap likely will be reached in December 2011.
The latest USCIS update is that 49,200 of the 65,000 regular H-1B numbers have been used as of October 28, 2011, leaving 15,800 H-1B visas. Based on prior year's usage, MU expects that the demand will rise again in November. The demand for H-1B numbers historically has spiked as the H-1B number grows closer to 65,000.
Employees that may need an H-1B visa include:

International students working on an EAD card under an OPT orCPT program after having attended a U.S. school
International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case
Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1;- H-1B workers with a cap exempt organization
Prospective international employees currently living abroad

International workers who are working in the U.S. on an H-1B visa with another cap-subject employer are not subject to H-1B cap. These cases are commonly referred to as "H-1B transfer" cases and may be filed at any time throughout the year.
Additionally, the USCIS sets aside an additional 20,000 H-1B numbers for graduates of US Masters degree (or higher) programs through a program referred to as the "H-1B Masters Cap". The H-1B Masters Cap has been reached. H-1B Masters Cap petitions are now also counted against the regular H-1B cap.
Read the full Healthcare and Immigration Law Blog at www.musillo.com or www.ilw.com.

Last week, MU Law notified its clients of a USCIS policy change, in which the USCIS was sending I-797 Approval Notices to Petitioners and Beneficiaries, instead of sending these documents to the Petitioners and Beneficiaries' designated representatives and lawyers.

In a quick break from this policy, USCIS Director Mayorkas announced that the USCIS will revert back to the long-standing policy of sending I-797 Approval Notices to the Petitioners and Beneficiaries' representatives and lawyers. MU Law applauds this reversion of policy. The USCIS is often lambasted for ill-thought out policy. It is therefore only right to highlight when they make the right decision.
Read the full Healthcare and Immigration Law Blog at www.musillo.com or www.ilw.com.

by Chris Musillo
Staffing companies provide value in industries where there is a shortage of qualified labor because the ability for flexible labor is great. Similarly, high rates of immigration are common in occupations where there are shortages of labor.
It is therefore understandable that many companies that employ large numbers of immigrants are staffing companies. The H-1B visa is the most common visa vehicle for these workers. Healthcare staffing companies often employ Physical Therapists and Occupational Therapists via the H-1B visa.
These companies often then have to move these workers to new geographical locations as dictated by client's needs. While a new or amended H-1B visa is required when there is a material change in an employee's job duties, a new or amended H-1B visa traditionally is unnecessary when an H-1B worker moves to a new geographical location.
As Musillo Unkenholt explained in an April 2010 letter to a public inquiry request by the USCIS,
In at least five prior correspondences (all referenced in the MU letter), USCIS and Legacy INS officials have determined that a simple geographic change is an immaterial change, and therefore the H-1B amendment rule is not triggered.
Practically and legally there is good reason for the existing USICS policy; a simple geographical change does not change the H-1B worker's underlying job duties.
In AILA's notes from an October 5 meeting with the USCIS, the USCIS implied that it may soon require a new or amended H-1B to be filed when there is a change in the worker's geographical location. The USCIS full comments were:
USCIS RESPONSE: This issue is currently under examination within the H-1B policy review working group as part of the comprehensive USCIS policy review. We will take AILA's views into consideration when finalizing the policy on what circumstances would require an amended petition to be filed with USCIS.
There is no rationale for a change in policy on this issue other than to create additional administrative burdens on H-1B Petitioners. Musillo Unkenholt hopes that the USCIS instead focuses its efforts on those who abuse the immigration system.
Read the full Healthcare and Immigration Law Blog at www.musillo.com or www.ilw.com.

by Chris Musillo
The Fiscal Year 2012 (FY2012) H-1B cap season began on April 1, 2011. Since April 1, a mere 41,000 H-1B cap-subject Petitions have been receipted by USCIS as of October 7, 2011. This is much lower than in recent years and likely reflects the fact that US employers are not hiring workers, including foreign-national workers.
Many healthcare professions ordinarily qualify for H-1B status, including Physical Therapists, Occupational Therapists, Speech Language Therapists, and some Registered Nursing positions.
Read the full Healthcare and Immigration Law Blog at www.musillo.com or www.ilw.com.

The Department of State has just released the November 2011 Visa Bulletin. The November Visa Bulletin is the second Visa Bulletin of US Fiscal Year 2012.

As recently has been the case, the EB-3 dates moved up slowly but steadily, averaging a few weeks improvement; India and China EB-2 did move ahead about four months.

The Visa Bulletin contained a discussion about future EB-2 movement:

The November Employment-based Second preference cut-off date for applicants from China and India is the most favorable since August 2007. This advancement is expected to generate significant levels of demand based on new filings for adjustment of status at U.S. Citizenship and Immigration Services offices. While significant future cut-off date movements are anticipated, they may not be made on a monthly basis. Readers should not expect such movements to be the norm throughout the fiscal year, and an eventual retrogression of the cut-off at some point during the year is a distinct possibility.

Nov 2011 Visa Bulletin

*
All Other Countries
China
India
Mexico

EB-2
Current
01NOV07
01NOV07
Current

EB-3
22DEC05
22AUG04
22JUL02
22DEC05

Read the full Healthcare and Immigration Law Blog at www.musillo.com or www.ilw.com.